Allowed

The Divisional Chief Executive v. State of Kerala

Kerala HC9 Apr 2019Crl.MC/5787/2017

Case brief

AI extract

What is this about?

The High Court of Kerala quashed criminal proceedings against a petitioner, a company official, held as second accused under the Cigarettes and Other Tobacco Products Act. The court ruled that prosecution cannot proceed against an individual in official capacity alone and imperative for the company to be charged. The appeal was allowed and proceedings were quashed.

What did the court decide?

The proceedings against the petitioner in the case S.T No. 4205/2016 on the file of the Judicial First Class Magistrate, Kodungallur, are quashed.

The Divisional Chief Executive Vs State of Kerala — Company and Corporate | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

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TUESDAY, THE 09TH DAY OF APRIL 2019 / 19TH CHAITHRA, 1941

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Crl.MC.No. 5787 of 2017

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AGAINST THE ORDER/JUDGMENT IN ST 4205/2016 of JUDICIAL MAGISTRATE OF FIRST CLASS , KODUNGALLUR

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PETITIONER/2ND ACCUSED:

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THE DIVISIONAL CHIEF EXECUTIVE TOBACCO DIVISION,M/S.ITC LTD,VIRGINA HOUSE,J.L.NEHRU ROAD,KOLKATHA-700071.

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BY ADVS. SRI.BECHU KURIAN THOMAS (SR.) SMT.K.SEEMA SMT.P.ANITHA SMT.R.S.GEETHA SRI.V.B.UNNIRAJ

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RESPONDENTS/STATE & COMPLAINT:

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1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COUIRT OF KERALA,ERNAKULAM-682031.

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2 HEALTH INSPECTOR IN CHARGE COMMUNITY HEALTH CENTRE,PERINJANAM,THRISSUR680686.

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SMT.K.K.SHEEBA PP

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 09.04.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No. 5787 of 2017

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R. NARAYANA PISHARADI, J

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Crl.M.C No.5787 of 2017

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--------------------------------------------

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Dated this the 9^th day of April, 2019

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O R D E R

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This petition is filed under Section 482 of the Code of Criminal Procedure, 1973 for quashing the proceedings against the petitioner in the case S.T No. 4205/2016 on the file of the Court of the Judicial First Class Magistrate, Kodungallur.

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The petitioner is the second accused in the case. The allegation against him is that he committed an offence punishable under Section 20 of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (hereinafter referred to as 'the Act').

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The case against the petitioner is based on a complaint filed before the Magistrate's Court by the Health Inspector, Community Health Centre, Perinjanam. As per the complaint filed by him, when he conducted inspection of the shop run by the first accused, tobacco products manufactured by the petitioner were found stored there. It

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is alleged that the tobacco products had no proper statutory warning labels.

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The proceedings against the petitioner are sought to be quashed on the ground that the petitioner is shown as an accused in the case not by his name but by his official capacity in a company. It is also stated that the complaint filed, without impleading the company who produced or manufactured the tobacco products as an accused, is not maintainable.

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Heard the learned Senior Counsel who appeared for the petitioner and also the learned Public Prosecutor.

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The petitioner is the second accused in the case. The petitioner is described in the complaint as “the Divisional Chief Executive, Tobacco Division, ITC Ltd.” Only a named person can be proceeded against in a criminal case. The proceedings against the petitioner are liable to be quashed on this ground alone.

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Section 26(1) of the Act provides that where an offence under the Act has been committed by a company, every person, who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished

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accordingly.

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In the instant case, the company who is the producer or the manufacturer of the tobacco products, has not been made an accused. In Aneeta Hada v. Godfather Travels and Tours Private Limited: (2012)5 SCC 661, the Apex Court has held that unless the company is made an accused, there cannot be a valid prosecution. True, this decision was rendered by the Apex Court in the context of the provision contained in Section 141 of the Negotiable Instruments Act, 1881. However, the dictum laid down in this decision squarely applies to the facts of the present case. On this ground also, the proceedings against the petitioner are liable to be quashed.

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Consequently, the petition is allowed. The proceedings as against the petitioner in the case S.T No. 4205/2016 on the file of the Court of the Judicial First Class Magistrate, Kodungallur, are quashed.

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Sd/-R. NARAYANA PISHARADI

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JUDGE

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lsn

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APPENDIX

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